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ANALYSIS OF JANUARY 11, 2008 SUPREME COURT OPINIONS

[Posted January 11, 2008] The Supreme Court hands down 20 published opinions today, including the capital murder habeas appeal of Director of Corrections v. Tice, which is reversed. The court passed several appeals on to the February session for decision, including a couple of significant cases, Moreau v. Fuller (testing whether a trial court can defer a finding in a criminal case, and whether mandamus is available to compel that judge to act) and the criminal appeal Jaynes v. Commonwealth, implicating Virginia’s anti-spamming law.

I will post analysis of today’s opinions throughout the day, and will likely complete that project tomorrow. Readers are welcome to check back from time to time for updated analysis.

ArbitrationMission Residential LLC v. Triple Net Properties LLC is as much about corporations (or more correctly, limited liability companies) as it is about arbitration. Mission and Triple Net are two LLC’s that formed a third LLC to pursue a joint business plan. The organizational documents contained a clause that mandated arbitration in the event of a dispute between the two members of the newly formed company.

Inevitably, trouble arose in corporate paradise (and it’s a good thing, too, or else lawyers would have a lot of idle time), and Triple Net filed an arbitration action. It asserted a direct claim against Mission, and also a derivative claim on behalf of the new company. The arbitrator rejected the direct action, but allowed the derivative claim to go forward.

Mission then filed suit in circuit court, seeking a stay of arbitration, claiming that there was no agreement to arbitrate as between the newly-formed company and its members. The trial court ruled that the matter was arbitrable, but today the Supreme Court reverses. It holds that the members of the company may well have agreed that any dispute among themselves would be arbitrated; but no one ever bound the new company to that deal. Since an LLC is a separate entity from its members, and since a derivative action belongs to the company, not the member who serves as the nominal plaintiff, it finds that there was no binding agreement to arbitrate a dispute between the new company and one of its members.

Today’s opinion recites two well-established yet often conflicting principles. Virginia public policy favors arbitration of disputes. But the state constitution guarantees a party the right of trial by jury. The resolution of this potential conflict is that the constitutional guarantee controls “unless that party has, by contract, voluntarily waived those rights.” The newly formed company never waived its right to trial by jury, so the case is remanded for a resolution in court.

Domestic relations
I love my wife dearly and support her in every way I can, so I’m reasonably confident that the holding in Purce v. Patterson will never apply to me. In this appeal, the court considers whether a husband abandoned his wife, and therefore forfeited his right to an elected share of her augmented estate after her death.

Husband and Wife married in 1988, but before too many calendars turned, the marriage encountered problems. Wife had more than her share of health problems, and Husband seemed to have little interest in caring for her. According to several petitions filed in JDR court over the years, what he had an interest in doing was abusing her; staying out late drinking; and threatening to kill her. One such petition even asserted that Husband’s girlfriend (!) was harassing Wife. These are all unmistakably bad signs. The parties agreed to separate in 2000. After Wife filed a divorce suit in 2003, Husband basically had nothing to do with Wife. Her health deteriorated further, and she died early in 2005.

It turns out there was one more thing that Husband was interested in – a share of the several rental properties that Wife had owned since before the marriage. He claimed a share of those properties when he found out that she had died. He hadn’t even known that she had gone to New Jersey to live out her final days with family. In this litigation, he sought that share; Wife’s personal representative (this is my inference; the opinion does not describe the appellee specifically) answered that he had abandoned Wife pursuant to Code § 64.1-16.3 (A). The trial court ruled that Husband has indeed abandoned Wife, and barred his interest in the rental properties.

On appeal, the Supreme Court first addresses the relevant dates for the conduct it would consider. Husband argued that anything after the date of separation was irrelevant, but the statute itself refutes that. The court notes that the recipe for disqualification includes abandonment that “continues until the death of the spouse,” so obviously it had to look at what happened between 2000 and 2005.

On the merits of the issue, . . . well, let’s just say that it’s not close. The court, clearly galled by Husband’s behavior and his subsequent claim of a part of Wife’s property, enthusiastically supports the trial court’s conclusion that Husband is barred.

There is one important point on page 5 of the slip opinion. Evidently, the term abandonment has not been defined I this context before. It certainly isn’t defined in the elective share statutes. The court therefore turns to general domestic relations law, and crafts the following definition (although it states that it is for use “in this case”): “[A] termination of the normal indicia of a marital relationship combined with an intent to abandon the marital relationship.”

Attorneys in fact
Like the previous case, Ott v. L&J Holdings presents the always unpleasant spectacle of a family squabble over a decedent’s property. At least the marriage in this one was a lot more pleasant.

Dewey and Lou Ann Monroe were wed for over half a century, and during that time, they prospered. They acquired substantial tracts of land, and had probably amassed quite a fortune by their declining years. Perceiving that his health might fail, Dewey executed a durable power of attorney in favor of his wife, giving her the power to sell his property, but not to give it away except in very limited circumstances. Lou Ann was specifically prohibited from giving any of her husband’s property to herself.

Four weeks later, Dewey suffered a stroke that prevented him from communicating or managing his affairs. He died 2 ½ years later after moving to a nursing home. After the stroke, Lou Ann assessed the family real estate and made a decision about three contiguous parcels; she thought it would be best to combine the three to make one large tract of 230 acres, which could then be sold to a developer. The problem was that she and Dewey owned one of the tracts as tenants by the entireties; Dewey owned the other two by himself. What to do?

Why, go to a lawyer, of course; that’s what to do. Lou Ann formed L&J Holdings, LLC because she liked the informality of the corporate form. It was also a vehicle by which she could combine the three properties without making a gift to herself, thereby increasing the potential sale price and minimizing tax consequences. A lawyer determined that of the three properties, Lou Ann owned 20% of the value of the whole, and Dewey owned the other 80%. The LLC was thus set up with the two of them owning those percentages of the company.

Lou Ann then signed a deed (in her own right, and as attorney in fact for her husband) conveying the properties into the LLC, but this is where the trouble arose. An attorney mistakenly titled it “Amended Deed of Gift,” when gift was the last word Lou Ann needed to use. But the deed itself didn’t look anything like a deed of gift. It listed a monetary consideration, not “love and affection”; it recited a Code section for exemption from recording taxes, but not the subsection that related to gifts. It also conveyed the property with general warranty and English covenants. To all appearances (except for the title) it looked like an ordinary deed of bargain and sale.

Dewey’s passing provided the spark that exploded this powder keg; he left all of his property to one of the couple’s children. That child qualified as Dewey’s personal rep, and filed a suit to set the deed aside as an impermissible gift. At trial, the court first determined that the deed was ambiguous, so it agreed to hear parol evidence about the formation of the LLC and the crafting of the deed. The embarrassed lawyer acknowledged that he never intended to create a deed of gift; the transfer was into an entity that had the same ownership percentage that the couple previously enjoyed, so there was nothing to deprive the heir of Dewey’s property. The trial court accepted this and affirmed the conveyance.

Today, the Supreme Court affirms both the trial court’s decision to receive parol evidence, and its ultimate conclusion that this was not really a gift to Lou Ann. The first issue is a question of law, and the Supreme Court finds as a matter of law that the deed is ambiguous, given the clash of representations therein. It then finds that there was a legitimate business reason for the transfer of the lots, and concludes that Lou Ann managed the whole thing without a whiff of self-dealing. The court thus affirms the judgment.

Habeas corpus
Ineffective assistance of counsel petitions filed by prison inmates probably aren’t quite as common as rainy days in Seattle, but then again, maybe they are. Those serving life sentences especially have lots of time on their hands, and often put that to use in pursuit of the understandable goal of a reversal, a new trial, or perhaps early release. The far rarer event is when a court grants such a petition, as happened in today’s decision in Director of Corrections v. Tice.

Tice was convicted of capital murder and rape in a case that received significant media attention in Tidewater, where the crimes occurred. The jury recommended two life sentences, and the trial court imposed it. Tice’s direct appeals fell on deaf appellate ears, so he tried the habeas route. He challenged his trial lawyer’s failure to move to suppress his confession, and also the lawyer’s inability to get a letter from another perpetrator admitted into evidence.

The habeas petition was originally filed in the same circuit court where the criminal trial had occurred. There, a different judge examined the evidence under the lens of Strickland v. Washington, 466 US 668 (1984), the landmark ineffective assistance ruling from the US Supreme Court. Under Strickland, a habeas petitioner must show (1) that his attorney’s efforts “fell below an objective standard of reasonableness,” and (2) that but for the deficient legal representation, there is a reasonable probability that the trial wold have come out differently.

The trial court concluded that Tice’s attorney failed to meet the standard of reasonableness by failing to move to suppress the confession, allegedly obtained in violation of Tice’s Miranda rights. It then concluded that, given the great weight one would normally afford to confessions, there was a reasonable probability of a different outcome if the motion to suppress had been filed. The circuit court thus granted the writ of habeas corpus. The government appealed, and the Supreme Court took the case.

Today, the court reverses the writ, and dismissed Tice’s petition. As it typically does, the court moves straight to the second prong of the Strickland analysis, and first determines whether the case might well have come out differently without the confession. It concludes that even without the confession, there is no reasonable probability that Tice would have received a different verdict. The court finds that the confession, important as it is in any criminal case, was overwhelmed by other evidence in the case that pointed to Tice’s involvement in the crimes.

The preference for the short cut of moving straight to the second factor is likely based on a couple of factors. The first and foremost is that determining the standard of reasonable attorney performance is often difficult, particularly given the ebb and flow of a criminal case. The attorney may or may not have had a legitimate reason to decline to move to suppress, and it’s hard for any court, trial or appellate, to step into that lawyer’s shoes. Of course, the use of an “objective” standard of reasonableness is supposed to eliminate that kind of inquiry, but in practice, it’s seldom easy to come up with one single answer to what an attorney should have done. The second possible factor is based mostly on my suspicion, not on any caselaw I’ve read. I believe that most judges are loath to rule that an attorney has committed what amounts to malpractice, in all but clear cases of such. The jurists may want to avoid criticizing able lawyers (and Tice’s trial lawyer is one of the finest criminal defense lawyers in Virginia) for making judgment calls. If the Strickland motion is decided on the second prong first, then the court never gets to such an inquiry. Note that I am not saying that judges will go to any length to avoid subjecting lawyers to possible embarrassment; they don’t, as the many published attorney discipline cases amply demonstrate. But if there is an effective way to decide a habeas case without doing that, it is perfectly understandable to me that a court will take that route.

Civil procedure
Fifteen years ago, the Supreme Court decided the case of Mechtensimer v. Wilson, 246 Va. 121 (1993), in which it held that an amended pleading that was filed without obtaining leave of court was of no legal effect. Mechtensimer’s latest progeny is today’s short ruling in Ahari v. Morrison, a wrongful death suit that was originally filed against a county and the Commonwealth. The personal representative asserted that the county and the state failed to maintain a roadway in good condition, thereby causing her decedent’s vehicle to crash.

The personal rep filed suit about 2 ½ months before the expiration of the statute of limitations. Evidently she learned rather quickly that she had sued a couple of very immune defendants (I used to work in municipal government, so I know those immunity cases well). She then crafted an amended complaint in which she added some live human defendants, whose immunity defense is more complex. No doubt having read Mechtensimer, she duly prepared a motion for leave to amend, and filed both of those documents three days before the statute ran.

But the trial court didn’t get around to entering an order granting leave to amend until two months later. By now, the statute has passed. The new defendants asserted the running of the statute as a defense, and the trial court was confronted with a question of first impression: In a situation like this, is the new pleading effective on the date the motion to amend is filed, or on the date the relief is ordered? There’s apparently lots of caselaw from other jurisdictions, but nothing in Virginia before now. The trial judge looked at the matter, and decided that the amendment came too late; it dismissed the suit as to the three defendants (the governments were by now long gone form the litigation).

So now the Supreme Court gets to tackle this novel question. Disdaining a number of decisions from other jurisdictions, the court today affirms the dismissal of the case. (In my view, the court gives short shrift to those rulings from other states, because the opinion doesn’t cite or otherwise describe them; there’s just a conclusory footnote tagged on at the end, almost as an afterthought.) It holds that since an amended pleading has no legal effect until the court authorizes its filing (that’s the specific holding in Mechtensimer), this amended complaint had no “life” until the trial court granted the requested leave.

The lesson here is obvious: Never play with deadlines. Like the well-known application of Rule 1:1 (a motion to suspend a judgment has to be adjudicated before the 21st day, not merely filed before that day), Rule 1:8 requires the entry of an order, not just the filing of a motion, for the amendment to take effect. In retrospect, what the plaintiff’s lawyer should have done was come to court before the statute ran, armed with an order, and ask that it be entered immediately. I recognize that that isn’t always possible in situations where trial courts dole out time with tweezers (this case was filed in Fairfax, where you can’t just walk in the door and ask if the judge is free to chat). In that event, the only solution is to file the motion far enough before the deadline that you don’t run the risk of missing it.

Criminal law
When I read today’s ruling in Parker v. Commonwealth, I thought back to Al Capone, the notorious mobster. Law enforcement authorities could never pin any of his real crimes, which must have been prodigious, on him. Instead, they nailed him, and jailed him, for income tax evasion, for failing to pay taxes on all the loot he stole.

In that vein, we have Parker, who through his girlfriend arranged to make a sale of 150 ecstasy pills to a buyer. Unfortunately for Parker, the buyer was an undercover cop. The interesting part of this case is that when Parker, again through his girlfriend, made the sale, he didn’t actually give him ecstasy; the tablets were fake. Accordingly, he can’t be convicted of selling narcotics.

Well, who said he was charged with selling narcotics? When they learned of the ruse, the police arrested him and charged him with obtaining money under false pretenses. (Ol’ Scarface must have appreciated the irony of that.) When he was handed the bottle with the faux drugs, the officer expressed skepticism – “Are you sure these are real?” The girlfriend answered offhandedly, “Yeah, they’re real.” So the officer handed over the agreed price of $2,350.00, which the girlfriend then dutifully carried back to Parker. Parker generously allowed her to keep $300.00 for her trouble.

The court reviews the four factors the government must prove in order to get a conviction for obtaining money by false pretenses, and notes that only one of them is in question in the case. That factor requires the prosecution to show that the defendant perpetrated a fraud by virtue of some false pretenses. The court concludes that the girlfriend’s first statement to the officer upon arriving with the bottle, “These are the pills,” was a false pretense. In my view, the rest of the analysis is inevitable; regardless of his expressed skepticism, the officer was reassured of the legitimacy of the drugs, and then parted with the cash. That’s enough to support this conviction, which is affirmed.

Sometimes it’s the little things that get crooks into hot water. Take today’s case of Bolden v. Commonwealth, involving a conviction of possession of a firearm by a convicted felon. You’ll never guess what originally brought the police officer’s attention to Bolden’s car. It was parked in a parking lot, but apparently straddling two lines. (I immediately thought of those arrogant owners of expensive trophy cars who deliberately park diagonally across two marked parking spaces, so no one will get close enough to ding their precious cars.) The officer started to walk toward the car, and when he did, the driver and passenger both got out and started walking toward him. At that point, a miraculous thing happened: It started raining evidence. From about the erstwhile driver’s person, a plastic bag fell. So did some rolling paper. The bag was a clear blue variety, and the officer immediately suspected cocaine inside. (He was right.)

Bolden then got a nice new set of bracelets to wear, courtesy of the officer. While he tried them on, the officer patted him down, and found the raincloud from which the other evidence had fallen: Bolden’s pockets contained several bags of marijuana and a wad of cash. There’s more – when the officer looked in the car, he found an open knapsack containing several plastic sandwich bags, marijuana, and a digital scale. On the off chance that this scene didn’t paint Bolden as a likely drug dealer, the pièce de résistance was the handgun in the blue grocery bag, located on the driver’s seat. This, you will recall, was the location where Bolden had been sitting just moments earlier.

Since Bolden’s challenge to his conviction was based only on sufficiency, the court views the evidence in a light most favorable to the Commonwealth. That means it adopts the inference, drawn by the trial court, the Bolden at least constructively possessed the weapon. His actions, in attempting to approach the officer before the officer could get to the car, only buttress that conclusion, so the conviction is affirmed.

One last point: Bolden raised a novel challenge to the Court of Appeals’ ruling, arguing that it considered evidence that was never commented upon, and that was not the basis of the trial court’s ruling. This argument gets a perfunctory backhand from the court today, as an appellate court is entitled – indeed, is required – to consider all of the evidence in the case, not merely that upon which the trial court or the prosecutor decide to focus at trial.

Those attorneys, like me, who don’t practice criminal law may be surprised to learn about the provisions of Code § 18.2-10 (g), which adds to most felony convictions an additional sentence of six months to three years, and then automatically suspends it based on compliance with post-release supervision. That means that even if a defendant gets sentenced to the maximum prison time permissible for a given felony, he will effectively receive a sentence in excess of that maximum. It’s suspended, of course, but it’s still hanging over his head to ensure that he complies with those release conditions.

That statute plays a decisive role in today’s ruling in Wright v. Commonwealth. Wright found himself charged with capital murder for having killed a man during a robbery. In order to avoid a conviction on that charge, with all it might entail, he agreed with the Commonwealth to plead guilty to the slightly reduced charge of first degree murder, and accept a life prison term. The circuit court listened to the recitation of the agreement and approved it. But when it sentenced him, it added an extra sentence of three years, just like the statute says.

You’d think that a guy who’s serving life wouldn’t care about a potential sentence that won’t kick in until after he serves life, especially after the abolition of parole; but you’d be wrong. Wright appealed the imposition of the additional sentence, saying that it ran counter to his agreement with the prosecutor. Plea agreements are governed by contract principles, and he argued that the court imposed upon him a contract that he never agreed to, which is a no-no under contract law.

The Supreme Court disagrees today, finding that all contracts necessarily incorporate into themselves the law in existence at the time of their formation. Since a statute mandated the imposition of the extra time, the trial judge was doing what he was supposed to do – following the law in effect at the time. The opinion doesn’t specifically address what happens if a plea agreement expressly disavows a statutorily mandated add-on like this (it would probably box the prosecutor’s ears for agreeing to such a thing), pointing out in a footnote that that issue wasn’t present in this case. If such an issue arrives at Ninth and Franklin soon, I humbly forecast that the Supreme Court would expect the trial court to reject the agreement, since I perceive that one cannot contract away the application of a statute to a criminal proceeding.

The court decides an interesting case involving felony eluding and endangerment today, in Phelps v. Commonwealth. I covered this case when the Court of Appeals handed down its published opinion on January 23, 2007, and the Supreme Court’s analysis today is largely the same as that of the Court of Appeals last year. Instead of a brand-new essay saying the same thing, here is a hyperlink to my recent coverage. The Reader’s Digest version of today’s ruling is that where the statute prohibits driving in such a manner as to endanger “a person,” it matters not that the only “person” thus endangered is the driver himself. The conviction is affirmed.

Proving notification of habitual offender status in prosecutions for driving after having been adjudicated HO has always been a prosecutor’s hobgoblin. You’ve got the hearsay problem, unless you happen to have handy the very officer who personally notified the driver. The DMV seems to provide a reliable source of official-records exception, by noting on each driver’s DMV abstract the fact of HO adjudication, and the circumstances by which the driver was notified. To my knowledge, hundreds or thousands of HO convictions have been based on this printed certification on those abstracts. But that always troubled me, even when I used those very abstracts to prosecute those very drivers back in my City Hall days in the 90’s. Today, we gets some definitive guidance on this vexing issue, in Bishop v. Commonwealth.

It isn’t easy to be declared an HO; you really have to work at it if you want to have a driving record that bad. Today’s opinion doesn’t describe Bishop’s long road to traffic court superstardom, but somehow, by perseverance, he got there, and the DMV was happy to reward him with a determination of HO status. Of course, that didn’t stop him from actually driving – in my experience as a former prosecutor, it almost never does – and police officers who had gone to his house to serve him with an arrest warrant watched as he blithely drove his car down the street and pulled into his driveway.

When the officers approached him with the warrant, Bishop, who had intended to walk unmolested into his home, went to Plan B – he lied and said he was someone else. An arrest and “a scuffle” followed, but by this point Bishop had been readily identified, and was the proud possessor of the right to remain silent. His only defense at trial to the HO charge was that the Commonwealth could not prove that he had received notice of his HO status. The prosecutor proudly whipped out the DMV abstract, which clearly stated (in pertinent part) the following with regard to the HO notification:

Now, remember, I was a prosecutor, and I confess I need extra time and a tutor to ensure that I really understand all that. (It’s sort of like driving on service roads. I hate doing that because, even though I’m a lawyer and a former prosecutor, not to mention a damned good driver, I don’t know the rules for service roads.) The trial court and the Court of Appeals, however, found it clear evidence, establishing beyond a reasonable doubt that Bishop had actually received notification of his HO status before his arrest. If you don’t speak traffic-court-ese, however, you might find yourself scratching your head as to what the transcript means.

Well, you’re in good company; a majority of the Supreme Court finds that this isn’t proof beyond a reasonable doubt; not by a long shot. The majority, headed by the chief justice, notes that the allegedly clear information is confusing, and doesn’t specify what he was supposedly notified of or who did the notifying. The final mention of “order mailed,” of course, is wholly ineffective to prove actual receipt of the notice.

The court also rejects the Commonwealth’s argument that Bishop’s lawyer conceded the issue of notice in argument and/or on brief. The short dissent, authored by Justice Lemons and joined by Justice Kinser, focuses on this part of the case, and argues that if the issue were framed correctly, then a different result would necessarily ensue. Justice Lemons contends that the lawyer admitted that Bishop received something; the only issue left was what, exactly, that was. And for that limited purpose, he finds the DMV abstract sufficient proof of what the notice must necessarily have stated to Bishop.

So Bishop shakes loose of this prosecution. I’ve got two bucks that say that he knows now that he’s been notified. In fact, if he gets the urge to cruise the town again, the prosecutor can simply hand the judge a copy of today’s opinion to prove actual notice.

When a police officer concludes a traffic stop and tells the driver, “You’re free to leave,” what, exactly, does that mean? The court gives us a divided answer in Malbrough v. Commonwealth, an unreasonable-search case from Chesterfield County. On a February afternoon in 2005, Officer #1 (these officers have names, but I’ll use numbers because, trust me, it’ll be easier for you to follow the story this way) stopped Malbrough for a couple of non-moving traffic violations (an improper license plate and a rejection sticker from his last state inspection). As the officer approached the car, Malbrough and his two passengers behaved admirably; they held still and told the officer that there was a gun in the car, on the console right beside Malbrough. The officer reached in and picked up the weapon without incident. So far, so good.

Officer #1 radioed to his department that he had taken the weapon. That brought two more police cars, containing Officer #2 and Officer #3, to the scene. Officer #1 then asked Malbrough for license and registration; Malbrough complied. Officer #2 then came up and asked Malbrough if he would get out of the car, and again Malbrough did as he asked. #2 mentioned to Malbrough that he was investigating a complaint of shots being fired in a nearby neighborhood, those shots coming from a vehicle that roughly fit the description of Malbrough’s car. Malbrough answered #2’s questions to the officer’s satisfaction.

At this point, Officer #3, who is a firearms instructor, approached #1 and asked to see the weapon. He looked it over and then tucked it in his waistband, behind his back.

Now Officer #1 returns to Malbrough’s car, where the driver and Officer #2 are still chatting about the shooting complaint. He places the license and registration, which had both turned up clean, on the driver’s seat of Malbrough’s car. He asks the two passengers to step outside and asks for a consensual search; they comply, and Officer #1 finds nothing. At that point, Officer #1 tells Malbrough where his documents are, and says the magic words, “You’re free to leave.” (Editorial aside – What? No traffic ticket for the license plate?)

Let’s review the scene here, because it’s important to today’s decision. Malbrough is standing outside his car, talking to an officer who’s asking about a shooting. Another officer, who was investigating only a couple of small traffic infractions, tells him he can leave. But Malbrough’s car is loosely surrounded by three police cars, and two (perhaps all three) of them have blue lights flashing. Officer #2 hasn’t told him he’s free to leave, and Officer #3 still has his weapon. The question is, would a reasonable person feel that he really is free to leave?

The answer to that question is important, because it’s at this point that Officer #1 apparently remembers that he still hasn’t searched either Malbrough or the car. He asks for permission to search the car, and that’s granted, but the car is clean. He then asks for permission to search Malbrough, who inexplicably says, “Sure,” knowing he has marijuana and cocaine in his pocket. At last; an evidentiary jackpot.

The issue in the trial court, and today on appeal, is whether the fruits of the search should have been suppressed. Criminal practitioners know that even “consent” to search may be coerced if the situation is such that a reasonable person wouldn’t feel himself at liberty to leave; that makes it a custodial search, which requires some sort of articulable suspicion, and the police obviously didn’t have that before they checked Malbrough’s pockets. Remember, everything up to that point had been perfectly proper, the improper license plate notwithstanding, and even that infraction wouldn’t give the police the right to search the driver’s person.

The majority (authored by Senior Justice Russell, in his always superbly clear writing style) rules that the trial court permissibly found that such a person would have felt “free to leave.” It thus concludes that Malbrough’s consent to the search was freely given, so the conviction stands. Justice Koontz, joined by the chief justice, dissents, finding that the situation was inherently coercive, so that one could not say that Malbrough could truly feel free to leave.

The emphasis of the majority’s ultimate holding here is on the deference always afforded to the finder of fact (here, the trial judge, who presided over the suppression hearing) on factual matters. The trial court was able to “look the witnesses in the eye and weigh their credibility,” and after doing so found that a reasonable person would have felt free to ignore the request for the last two searches. This analysis is troublesome to me for a couple of reasons. First, Malbrough unquestionably had just been in a situation in which he was not free to leave (particularly when Officer #1 had his license and registration), and a layman cannot be expected to make fine distinctions as to whether a custodial situation still existed shortly thereafter. Remember, police officers are authority figures, and justifiably so, so it isn’t easy for an ordinary citizen, without training in constitutional law, to know when he’s free to tell the officer to take a hike. And until he got his gun back, just how “free” was Malbrough to leave the scene? Suppose it had been his cell phone or his wallet instead – would Malbrough be expected to exercise his right to “ignore the request and leave” only upon pain of forfeiting that personal property? If you answer, “Of course not; you don’t have to surrender your property in order to enjoy constitutional rights” (and I think you have to answer that way), then how is that decision any different because the property is a weapon?

The second problem with the majority’s approach is that, in emphasizing the factfinder’s determination, it blurs the line between an objective analysis (whether a reasonable person would have been free to leave) and a subjective one (whether Malbrough, in fact, felt free to leave). By clear weight of authority, this analysis requires the objective analysis; what Malbrough actually thought at the time is irrelevant. But the trial judge, after having found the facts by listening to the witnesses, then made a legal determination about what a reasonable person would have felt. Appellate courts don’t afford “substantial deference” to trial courts’ legal rulings; they evaluate those de novo. The majority today holds that it must afford deference to what the trial judge ruled a reasonable person would have felt at the time these uncontested facts unfolded. In my view, there is no reason whatsoever for the court to back off this legal issue by claiming that the trial court’s view must be respected. The court should have acknowledged the facts as the trial judge found them, and then made its own determination as to whether those facts would objectively create the impression that the driver is free to leave.

Whether a given set of facts exists is, axiomatically, a question of fact, and deference to the factfinder is appropriate. But whether those facts justify a given legal conclusion is, just as clearly, a matter of law, and appellate courts must apply plenary review to that kind of ruling. The Supreme Court has declined to do that today, and in my view, that’s a mistake. The ultimate question of whether these facts would meet the objective standard is a close one, so I’m not prepared to say that this case came out wrong. But I’m convinced that the court took the wrong approach to deciding the dispositive issue in this appeal.

Sharing living space always comes with a set of problems. Think back to college, when you had a roommate in your dorm; no privacy, and always somebody swiping your stash of cookies and beer. It’s worse when you live with family, because while you usually don’t have the larceny risk, the assault on privacy is more extreme. In either situation, your roommate often can consent to police searches of places that maybe you don’t quite want opened. That very problem engenders today’s case of Glenn v. Commonwealth.

Glenn roomed with his grandfather. I’m confident that the grandfather was a kindly, law-abiding man. Glenn might have been kindly, but law-abiding he was not, judging from the contents of his backpack. Police arrested Glenn at his grandfather’s front door, and then stepped inside, where they found the grandfather. Perhaps surprised to see his grandson in handcuffs, he nevertheless gave the officers permission to search the house. Glenn was still around, and he had apparently never put much faith in all that technical right-to-remain silent stuff that the police told him; he helpfully pointed out a couple of rooms where he slept from time to time. In one of those rooms was a closed backpack.

It didn’t have any markings on it; there was nothing about it that let the police know whose backpack it was. But reasoning that they had the grandfather’s specific permission to search the house, which presumptively included everything in it, they opened the backpack. And there they found Glenn’s wallet, plus evidence linking him to a recent robbery.

Attorneys who practice criminal law, on both sides of the aisle, will immediately recognize the legal issue here. Can the grandfather give the police consent to search a closed container that’s in his house, if that container belongs to someone else? The trial court said yes, he can, and convicted Glenn based on the damning evidence in the backpack. A panel of the Court of Appeals said no, he can’t, reversing in August 2006. The full CAV then took the case, and said, “Oh, yes, he can,” in a 2007 opinion. The Supreme Court adds a final, “You’re darned right he can” today.

The dispositive factor for today’s opinion is that the grandfather had the apparent authority to consent to the search, since there was nothing about the backpack that let the police know that it wasn’t his. (The court distinguishes a case deciding whether the police could have believed that a man had the right to consent to a search of a lady’s purse. There, a reasonable cop could easily have figured out that the purse wasn’t his.) The backpack could just as easily have belonged to the grandfather as Glenn, so there was nothing improper about the conclusion that the police had the right to look inside.

There’s one more factor here that works against Glenn. He used that right to remain silent, but he picked the absolute worst time to do so. That time was when the officers found the backpack and said, “Gee, I wonder what’s inside here . . .?” At that point, if Glenn had wanted to stop them from looking inside – and we can all agree that he desperately wanted to stop that – he could have spoken up and said, “Hey, that’s mine.” Today’s opinion makes it clear that if he had done that, then the police would have needed a warrant to unzip the bag. But by keeping quiet, Glenn left the police free to assume that the bag, like the house, belonged to the grandfather until they saw what was inside.

Administrative agencies
Virginia citizens get preferential treatment at the bursar’s office at state-supported universities. The price differential between in-state tuition and out-of-state can be pretty steep. One law student at George Mason in Fairfax decided it was significant enough to litigate. The result is GMU v. Floyd.

Floyd came to the Commonwealth in 2004, and enrolled at the GMU law school for the fall semester of that year. He paid the tuition rate for “foreigners” for the first year, but by the time his second year rolled around, he figured he met the one-year residency requirement. So he asked the school to give him the lower rate. “No dice,” came the answer, essentially classifying him as being just short of a carpetbagger. Floyd followed the university’s three-tier grievance procedure, but was rebuffed at each turn.

I have said on many occasions in the past that one should never underestimate the creativity and ingenuity of a lawyer, and that apparently goes for law students, too; Floyd persuaded the Fairfax Circuit Court that the school’s decision to deny him in-state status was arbitrary and capricious. The court ordered GMU to give him the cheaper rate. Instead, the school got out its road map and headed down I-95 for Richmond.

The court first takes up a sticky jurisdictional question: Shouldn’t this case be in the Court of Appeals? The CAV has appellate jurisdiction over administrative law matters, and upon reviewing all these grievance hearings, this sure looks like an admin law matter to the casual legal observer. The court even acknowledges today that the university is a state “agency,” since that term includes “instrumentality,” which the university technically is. (It’s Virginia Agency #35, if you really want to know.)

Ah, but there are administrative agencies, and then there are REAL administrative agencies. This one is hard to follow at first, but it’s understandable, and correct: The university may make administrative decisions, but it isn’t an administrative agency, such as one of the statewide professional board in Title 54.1. The court adds a nice turn of phrase here in stating that, “The primary goal of every university is to educate, not regulate, its students.” The court concludes that this is not an administrative appeal, and so it’s properly in the Supreme Court.

That doesn’t mean that Floyd wins; it just means that he gets a ruling today. And he’s not going to like it, either. The court finds that the circuit court was “plainly wrong” (those are magic words for appellate practitioners, as they meet the stiff burden set up in Code § 8.01-680), in view of established precedent in this field. Just living here for a year isn’t enough to earn in-state tuition. If the purpose of your coming is just to attend school, then the courts presume that you wouldn’t be here but for that schooling. Paying taxes here, registering your car (and to vote) here, even getting a Virginia driver’s license, won’t be enough to transform you into a Virginian. (Of course, if the old joke is correct, then you won’t be a Virginian until at least six generations of your ancestors were born here before you; but there is no truth to the rumor that GMU uses that rule.) The court thus reinstates the school’s initial refusal to grant Floyd (who presumably is out of law school by now) the in-state tuition rate.

Medical malpractice
Expert witnesses are the backbone of every med mal case; they are required to establish the applicable standard of care, whether the defendant health care provider negligently breached that standard, and whether the breach proximately caused the injury complained of.

Well, not every med mal case. Some involve issues so straightforward that the jury is permitted to apply its own experience and common sense in order to determine thee issues. And one of those exceptions is Coston v. Bio-Medical Applications of Virginia.

Coston came to Bio-Medical for kidney dialysis one day in 2002. During the treatment, the chair in which she was seated collapsed, throwing her to the floor. Startled Bio-Medical personnel quickly came to her, set the chair back up, and then put her back in the same chair. Not long afterward, the chair collapsed again, giving poor Coston two nasty spills in one trip.

Coston sued for medical negligence. She had until a date certain to list expert witnesses, but she didn’t list any – what, a chair collapse expert? Bio-Medical then filed a motion for summary judgment, asserting that without a standard of care expert, Coston cold never prove her med mal case. The trial court agreed and granted summary judgment. But succor finally arrives today, in the form of a reversal from the Supreme Court. Today’s opinion notes that not every case requires an expert, particularly when the jury can figure things out for itself. A jury would be poorly equipped to determine the etiology of a subdural hematoma, but it can probably figure out for itself whether it’s a smart idea to put a lady back into a chair that just crumbled into a heap. Coston didn’t need an expert, the court rules, so the case is remanded for trial.

By the way, if the names sound familiar, go to the head of the appellate class. The same parties came to the Supreme Court a short time ago, albeit with the parties reversed. Bio-Medical Applications of Virginia v. Coston, 272 Va. 489 (2006) involved a reversal of Costen’s attempt to take a last-minute nonsuit before the trial court could make this very ruling. The Supreme Court held that she had waited too long before nonsuiting, so it remanded the case so the trial court could go ahead and rule. Today, it finds that the same trial court got that ruling wrong.

The other med mal case decided today, Lloyd v. Kime, provides very important guidance in just what constitutes “the defendant’s specialty or a related field of medicine” for the qualification of an expert witness. It also gives us a useful reminder of a well-known but often under-used procedural tool.

The patient consulted the doctor, who practiced orthopedic surgery, for treatment of a couple of herniated cervical disks. The doctor elected to operate, and allegedly caused further damage during the operation. The patient sued, claiming (1) negligence in the surgery and (2) a failure to diagnose and properly treat the worsening problem in the hours after the operation.

When the time came to designate experts, the patient designated a neurologist who isn’t licensed in Virginia, but whose credentials matched the requirements for Virginia licensure. The witness’s qualifications to practice neurology weren’t in issue, but his field of practice was; neurology isn’t quite the same as orthopedic surgery, and the doctor objected to his use. Handing the trial judge a copy of the witness’s deposition, the doctor asked the judge to rule in limine that the witness didn’t meet the requirements of Code § 8.01-581.20, quoted briefly above. The trial court agreed, and barred the witness from testifying.

Now the patient had no expert on the standard of care (and it was too late to add another one). Unlike the situation with the collapsing chair, an expert would emphatically be needed to sort out the standard of care and other medical issues in this case. The doctor thus moved the trial court for summary judgment; the court was happy to comply. The patient got a writ.

The first lesson of the case is the reminder about the procedural tool. Both a statute and Rule 3:20 prohibit the use of depositions for purposes of obtaining summary judgment, unless all parties consent. The doctor had used the witness’s deposition transcript to win a motion in limine, after which the separate motion for summary judgment was a foregone conclusion. The court notes that the bar on this use of transcripts isn’t limited to situations where the motion is technically denominated as something other than SJ; it’s realistically anything that a party cold use to get the functional equivalent of SJ. The court finds that this motion in limine is such a motion, so it was improper for the trial court to use the deposition to grant it unless everyone consented.

The patient insisted that he didn’t consent. The doctor first argued that he had impliedly consented, by using the same transcript to defend against the motion. Sorry, the Supreme Court answers; it’s perfectly permissible to use a deposition to resist summary judgment. You just can’t use one to support such a motion. But the court finds that the patient has not objected on the record to this use, and that failure to object establishes consent.

It’s time to pause here for an aphorism used by appellate lawyers; trial lawyers should keep this in mind as they conduct proceedings in circuit court. The saying is, If it isn’t in the record, then it didn’t happen. The patient insisted that he had objected, in court and on the record, but he failed to file the transcript of that hearing. If an objection isn’t in a transcript or a written pleading that is made a part of the trial court’s record, then that objection is essentially invisible to an appellate court, and will not avail the litigant upstairs.

The court then turns to the merits of the doctor’s qualifications. It finds a fundamental difference between neurology and orthopedic surgery as they relate to the surgery itself (the patient’s first allegation of negligence). Perhaps if the witness had been a neurosurgeon (in shorthand, a sort of neurologist who also performs surgery, instead of maintaining an office practice), then I think this ruling may have been different. The court rules that the witness therefore can’t testify about the surgery. But he can testify about the postoperative care, since the tasks performed by a neurologist and an orthopedic surgeon are essentially the same in that context.

This case is required reading for anyone who handles medical malpractice cases. It will also be cited often in non-medical cases by those seeking the protection of the bar against using depositions for summary judgment purposes.

Torts
The tragic case of Hilton v. Martin explores an important aspect of the Workers’ Comp bar in personal injury cases.

Courtney Rhoton was an EMS provider employed by a company called Highlands Ambulance Service in Russell County. She and two colleagues went to lunch one day in 2005, traveling in one of the company’s ambulances. During their return to the office, one of the other two employees, who evidently had overwhelming maturity issues, thought it would be fun to tease Rhoton by threatening her with charged defibrillator paddles, which are used to deliver jolts of electricity to restart a stopped heart. With Rhoton in the front passenger seat, the prankster charged the paddles, and then made a move toward her, saying, “I’m going to get you.” When she screamed in protest, he turned back and seemed to be putting the paddles away. But without warning, he turned back and touched her with the paddles, sending 150 joules through her body.

He killed her. Rhoton went into a seizure, and was quickly transferred to another ambulance for transport to a hospital, but she died three days later without regaining consciousness. Her father sued the assailant, Martin; the company; and one of its employees (whom he accused of medical malpractice in connection with the emergency treatment his daughter received). Other theories of recovery included assault and negligent hiring and retention.

All of the defendants raised the Workers’ Comp bar, asserting that the attack arose out of and in the course of the employment. No one disputed that it arose in the course of the employment; the only question for determination was whether it arose out of her work. The trial court ruled in favor of the defendants, holding that the father’s only remedy was for Workers’ Comp benefits.

On appeal, the Supreme Court today finds that the trial court got it wrong. A determination that the paddles would not have been there but for the employment doesn’t end the inquiry; nor does it even advance the inquiry. The issue, the court holds, is whether the assault was directed to the employee personally, or in her status as an employee. Here, there is nothing in the record to suggest that Martin’s behavior had any relationship with the victim’s status as an employee; it finds that the attack was “purely personal.” Further, Martin’s decision to misuse the employer’s equipment “was entirely his own and unconnected with the conditions of the employment.” Accordingly, the court reverses the ruling on the pleas in bar, and remands the case for trial.

Property owners’ associations
If you live in an area with a property owners’ association, you probably either love it or hate the governing body; feelings seldom run lukewarm with such entities. Either you regard it as an essential safeguard of your property values, preventing your neighbor from painting his house in diagonal lime green and violet stripes; or else you see it as the neighborhood Gestapo that won’t let you put up curtains that are just a tad too dark in color, in your own house. But just how does a body get all those rights and all that power? Today, we see Chapter 2 in the saga of a particular association, in Dogwood Valley Citizens Association v. Shifflett.

The association tried once before to assert the formidable powers afforded such bodies by state law (including the right to levy special assessments, and to slap a lien on your home if you don’t pay up). But in DVCA v. Winkleman, 267 Va. 7 (2004), the Supreme Court found that the association hadn’t done one of the things it had to do in order to exercise those powers. Specifically, it hadn’t recorded among the land records a declaration that imposed upon it the obligation to maintain the common areas in the neighborhood. The association lost that 2004 case, but it quickly remedied the problem by recording its articles of incorporation and its bylaws. The bylaws stated that the association’s board had the duty to maintain those areas, so that was that; from that point on, the association figured, it would be able to wield those powers.

And it wielded them. It promptly hit its members with a special assessment. When some of the residents resisted, the association took them to general district court. But for some reason, the judge refused to enforce the assessment. In a trip to circuit court, the association did no better; the judge in that case told it that just recording the bylaws wasn’t enough to qualify it as a property owners’ association under the law.

The Supreme Court today affirms that ruling. It holds that the corporate documents aren’t a “declaration,” as the statutes clearly treat them as something separate. As well, the bylaws don’t “impose” any duties upon the association, because the association can change those bylaws internally; only the initial declaration can do that. (The declaration could also be amended by the members as a whole, but that didn’t happen here.) Basically the association voluntarily assumed the duty to maintain; it wasn’t imposed upon the association by an extrinsic document. That means that the association still doesn’t have the right to make those assessments, and it will have to go back to the drawing board once again.

Foreclosures
Attorneys who represent mortgage companies had better read Bayview Loan Servicing v. Simmons right away. It illustrates the danger of even a minor deviation from specified procedures in foreclosure proceedings.

Simmons was late in paying her second mortgage. When that delinquency reached several months, the lender mailed her a big red flag, in the form of a notice that, unless she brought the mortgage current within 30 days, it would exercise its right to accelerate the note and require payment in full, or else foreclose. The month passed without incident, so the lender sent Simmons a notice, this time by certified mail, telling her that the property would be sold at foreclosure 15 days thence. The letter was returned unclaimed, and the foreclosure sale took place as scheduled.

Two days later, Simmons found out about all this, and erupted. She filed suit to set aside the sale, claiming that the lender hadn’t followed the required terms for acceleration of the note. She also sought alternative damages against the lender for loss of her equity in the property. After a hearing, the trial court agreed with Simmons, and awarded her damages of roughly $157,000.

This case turns on the very first notice sent by the lender. Remember the red flag letter? That was sent by plain old first class mail. But the deed of trust required that any notices be sent by certified mail. Since the lender chose an inappropriate method of sending the notice, and since it couldn’t prove that Simmons had actual notice of the sale, that made the whole process invalid. The lender has several responses to that. Among those are the fact that Simmons had actual knowledge of her delinquency, and she should have known that Bad Things happen to people who don’t pay their mortgages, like getting foreclosed on. This is, of course, true, but it’s also irrelevant; the deed of trust sets out a specific procedure that must be followed in order to permit foreclosure.

The lender next turned to a statute that provides that a properly served written notice of foreclosure (and the certified letter, notifying Simmons of the impending sale, was unquestionably properly served) “shall be deemed an effective exercise of any right of acceleration” in the deed of trust. That means that even if the first notice wasn’t effective, the properly served second letter cured that.

That one’s close, but no cigar for the lender. The Supreme Court today carefully explicates the statute and finds that it doesn’t apply to this situation. The reason for that is this: Before the lender can exercise a right of foreclosure, the right of acceleration must have accrued. Only after that right has matured may the lender issue the foreclosure notice, and any notice issued without a valid right of acceleration is of no legal effect. Ultimately, the court affirms the judgment, leaving the lender on the hook for a lot of money.

My suspicion is that procedural defects like this occur very rarely when lenders use law firms that are experienced in foreclosures. Those pros know not to take shortcuts like sending out notices by regular mail. But attorneys representing Harry and Mrs. Homeowner should nevertheless scan the mortgage documents carefully, in case someone has dropped the ball somewhere, thus potentially invalidating the whole proceeding.

Workers’ compensation
Sometimes the meat of an appeal is what isn’t present. That’s the case in Ford Motor Co. v. Favinger, a Workers’ Comp appeal that centers on the injured employee’s responsibility to market his residual employment capacity.

Favinger regularly worked 50-hour weeks in a body shop at Ford, racking up a lucrative ten hours of time-and-a-half every week. Then he got hurt on the job. He was eventually released to return to work, but only for light duty. The problem that eventually engendered this appeal is that no overtime work was available for the light duty job. He therefore filed a claim for temporary partial disability benefits, saying that his income was down because he couldn’t get the overtime pay.

At the hearing before the deputy commissioner, Ford argued that Favinger had not marketed his residual capacity, since he never actually sought any additional work form another employer. (Ford evidently conceded that it didn’t have any overtime work that Favinger could perform.) Favinger answered that he couldn’t very well take a job elsewhere (at what he figured would be a significant pay cut), since he was always available at a moment’s notice in the event Ford came up with work for him. His availability to Ford, he argued, was his marketing effort.

Today the Supreme Court sides with Ford, largely because of an absence of record support for Favinger’s underlying contentions. There is nothing in the record, the court finds, to support the contention that taking a pat-time job elsewhere would interfere with Favinger’s ability to take on overtime work if Ford had it; that was simply Favinger’s assumption. And when asked directly if he sought other work to make up for the lost overtime pay, Favinger answered directly, “No, sir.”

This case represents the very small category of appellate rulings in which a reviewing court finds no factual support for a factfinder’s determination. The full commission had ruled in favor of Favinger, and today the Supreme Court decides the case based on the absence of evidentiary support for the commission’s conclusion.

One last point about this case. If you’re one of those people who think the Supreme Court won’t take small cases, here’s an opportunity to think again. The opinion doesn’t specify the size of Favinger’s claim for temporary benefits, but my scientific wild guess, based on my knowledge of the percentage afforded by the Act and a guess as to how much Ford pays experienced body shop workers, is that the case involved no more than $5,000 to $8,000. The appellate legal fees for this case will likely dwarf that range. The lesson here is never to assume that your case is too small to appeal. It might not merit an appeal on the issues — case selection remains one area in which lawyers could stand to sharpen their focus — but the court will never decline a case simply because there aren’t enough zeroes in it.